Security Clearance Denial

A Common Thread in Security Clearance Denials Upheld by DOHA

I have noticed a common thread among many of the case summaries written by Defense Office of Hearing and Appeals (DOHA) judges when explaining the board’s rationale for upholding the initial denial or revocation of an applicant’s eligibility for a security clearance. Before I get to that, here is a brief overview of the DoD appeals process (when submitted in writing):

  • Government Agency issues the applicant the decision letter denying or revoking eligibility after reviewing the reply (if any) to the statement of reasons
  • Applicant submits an intent to appeal (Notice of Appeal) to DOHA within 15 days of the initial denial
  • Applicant now has 45 days from the initial denial date to submit an appeal brief to DOHA with the specific reasons (backed up with record evidence) for why they think the initial decision was in error
  • DOHA will notify the agency that denied the clearance of the appeal and provide an opportunity for them to reply (within 20 days)
  • The board reviews all information and issues a written decision

Sounds pretty simple, right? There is one thing all applicants should be aware of when submitting an appeal to DOHA and it is this; you cannot submit evidence or mitigating information that was not present when the initial decision was made. Take financial issues as an example: you owed five creditors various amounts of money that were in collections and that was the reason you were denied a clearance. After the initial denial you decide to pay off all five creditors and submit the proof in your appeal brief to DOHA. The board will not consider this new information because it was not available when the initial decision was made.

The board is only looking at whether or not the judge’s decision was made in error, was contrary to law, failed to consider any mitigating factors that were present or did not adequately consider other factors using the whole person concept. As always, any doubts about an individual’s trustworthiness will be resolved in favor of national security.

Discussion

  1. When we talk about a “DOHA Appeal,” this is the second round, correct? That is, an applicant has received an SOR, and has provided a response (the first round). If the response to the first round is not favorable, the applicant may then file an appeal (the second round), and that is where the notion of challenging the correctness of the decision.

    Is that right? A person should be able to introduce new information in that first round.

  2. Correct, any information that could be used to mitigate the issues has to be submitted in the SOR response. The appeal to DOHA is to contest whether mitigating factors were properly applied and all procedural processes were followed.

  3. I have seen several go tot he second round and the simple instructions to get in a repayment plan was ignored. Specifically one person had about 9 creditors and they only paid off 2. Somehow they felt they were going to get over on the board.

  4. Hello
    I was hoping someone could provide further insight. I received a withdrawal letter from the Department of the Army stating “The reason for this action is because your security investigation indicated that you do not meet pre-employment security requirements for access at the requested levels. This matter has been discussed with you and appears it cannot be satisfactorily resolved to permit employment wit the Department of the Army at this time”. No one has ever contacted me. My SF86 was accepted November 2017. Do I have any recourse? I was not given the reasons or the opportunity to provide a Statement of Reason. Any information is appreciated.

  5. If I read correctly, you submitted an SF-86 last November during the employment application process, have not been working in that position pending acceptance, and have now received word that you did not meet the pre-screening requirements? If this is the case you have no recourse as you were not denied a security clearance based on a completed background investigation, rather you were not selected based on pre-screening criteria.

  6. Thank you for response. I was under the impression that a background investigation was being done. In June 2017, I interviewed with another employer and their FSO stated that I couldn’t be hired because I had an open investigation in JPAS; however, once that was completed to give that company a call back. Is JPAS part of pre-screening?

  7. Sounds like DA failed to discontinue your investigation after withdrawing their offer of employment, hence you are stuck in limbo.

  8. Would it be safe to say this decision was based on DA? I have held a position of Public Trust twice as a contractor with a different government agency.

    Your expertise is appreciated, everything has been silent for the last nine months.